No decision as web hate speech case ends

Section 13: Internet hate speech review ends with no decision

A federal court review of Canada’s Internet hate speech law ended without a decision Wednesday, with the judge hinting he might have been persuaded to consider overturning the law, rather than stick to the narrow legal issues put forth by the Canadian Human Rights Commission.

Mr. Justice Richard Mosley also had harsh words for the federal government, which withdrew from the case — a constitutional review of Section 13 of the Canadian Human Rights Act, within the hate speech prosecution of Freedomsite webmaster Marc Lemire by activist lawyer Richard Warman.

The government’s absence is “unusual and regrettable,” the judge said.

Section 13 “is federal legislation. The Attorney General should be here. The Attorney General should take a position, as it appears he did at the [Canadian Human Rights] Tribunal.”

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Rob Nicholson, the Justice Minister, does take a position. The problem is that it is exactly the opposite position he took in 2008, when Mr. Lemire’s case was before the tribunal, and the Conservatives held a vulnerable parliamentary minority. Then, he intervened to support Section 13. Now, with a majority, Mr. Nicholson has urged Parliament to back a private member’s bill that could repeal it next year.

Passed by Parliament in 1977 to combat telephone hate lines, and expanded to the Internet in 2001, Section 13 bans repeated messages that are likely to expose protected groups to hatred or contempt.

In the age of the Internet, it has been used almost exclusively by Mr. Warman, a former CHRC employee who has seen 15 hate speech cases through to a conclusion, usually with a financial penalty, a cease and desist order, and occasionally payments to himself to compensate for retaliation.

Judge Mosley said he is tempted to wait for the Supreme Court of Canada’s decision in the similar case of William Whatcott, which will re-analyze Canada’s main legal precedent on hatred. But that could be months away and he might decide on Section 13’s constitutionality before then.

The CHRT found Mr. Lemire had violated Section 13 by posting a racist, homophobic article called AIDS Secrets, written by someone else, which he removed as soon as he was told of the complaint. That willingness to resolve the complaint, however, coupled with the CHRC and Mr. Warman’s refusal to agree to mediation, led Athanasios Hadjis, a tribunal member, to conclude in 2009 Section 13 was no longer a reasonable limit on freedom of expression, as the Supreme Court decided in 1990.

Once remedial and conciliatory, the law had become punitive, he decided. He made no order against Mr. Lemire, and cast Section 13 into limbo.

Margot Blight, the CHRC’s lawyer, argued the commission’s actions alone cannot invalidate a law and the judge must confine himself to the narrow issues raised in her request for judicial review. These focus on whether Mr. Hadjis should have upheld the basic law, and simply “read out,” or ignored, the penalty provisions.

Barbara Kulaszka, Mr. Lemire’s lawyer, said the judge can and should reconsider all of Section 13. She argued Mr. Hadjis could have reached the same conclusion on different grounds, namely that expanding the law to include Internet has drastically changed the constitutional questions, as the Supreme Court understood them in 1990. She said recorded telephone messages simply do not compare to the participatory style of the web.

Section 13 is a “truly despicable law, enforced in a despicable way,” with federal bureaucrats acting in the manner of Crown prosecutors, she added.

“If it wasn’t for Richard Warman, Section 13 would basically be dead, because Canadians love the Internet, the back and forth… the freedom of speech it represents.”

Ms. Kulaszka compared Section 13, and its supposed 100% conviction rate, to Nazi Germany and the Soviet Union, which did not sit well with Judge Mosley.

“Let’s not get carried away with hyperbole. Some comparisons are offensive,” he said. “Counsel should know this and restrain yourself.”
National Postjbrean@nationalpost.com

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